Hot Topics # 5


Free Speech and Politics in the Workplace

Another presidential election year is upon us complete with a new March Primary Election. This is the time when supervisors traditionally must deal with increased political discussion in the fire station. These discussions may range from innocent comments made in day room discussions about issues or candidates, to employees aggressively campaigning for a candidate or ballot initiative, to employees publicly criticizing the department's policies. Any given situation may or may not be covered under the free speech clause of the First Amendment, depending on the facts. Often times it is difficult for employers and employees alike to determine what is appropriate. This article sets forth suggested guidelines for employers and employees to use when assessing whether an employee may be disciplined for particular speech or actions, or whether the behavior is protected by free speech rights guaranteed by the First Amendment to the United States Constitution.

Contained somewhere in the Personnel Manual, Operations Manual or SOP's, most agencies have a general policy prohibiting political activities in the employer's workplace and on the employer's time. Often times the real issue is figuring out what is "political activity." Consider a common situation where the Firefighters' Association or Union is actively supporting a City Council Candidate. Most people would agree that campaigning while on duty and/or in uniform would be improper, as would making telephone calls to voters and printing campaign literature in the fire station. This is the type of political activity that is clearly prohibited.

What about political discussion while on duty? Here the process becomes a lot more gray and a lot less clear. The differing interests of employer and employee are apparent when a public employee engages in political speech. Again, actively campaigning for a candidate on duty is improper. Also, supervisors must be careful to avoid putting any pressure on subordinates of a political nature. But fire stations contain televisions and newspapers where many political advertisements provoke much political thought and sometimes stimulate discussion. Benign political discussions are a way of life among people and are usually harmless. Firefighters are human beings and, as such, will discuss contemporary (including political) issues while interacting with each other at work. This type of political activity, when not otherwise disruptive to the organization, while not encouraged, is usually found to be permitted and protected by free speech.

When such discussions escalate to the point where they threaten to disrupt workplace harmony and/or undermine organizational efficiency, the situation is progressing into an area which is probably not protected by free speech. Here, supervisors may feel the need to take action, including disciplining the offending employee under the "no political activity" provisions of departmental policy. This is a judgment call and, often times, it is not easy for a supervisor to make. The prudent advice to employees is, if you think there is a possibility that it might not be proper under the policy, refrain from it.

If the employee's statements directly attack the policies or practices of the employer, the employer may correctly believe they constitute insubordination. The question which arises among supervisors is, where does free speech end and the employer's right to prohibit speech begin? Under what situations can an employer discipline an employee who makes statements contra to the employer's interests? This is the classic balancing of employee free speech rights vs. the employer's right to regulate certain speech. Striking a balance between these complex competing interests is something the courts have struggled with for years.

The free speech clause of the First Amendment to the U.S. Constitution prohibits the government from abridging the free speech rights of its citizens. Thus, whenever a public employee speaks out in the workplace, such speech may fall under the protection of the First Amendment but such protection has boundaries. The courts have long recognized that public employers have valid traditional interests including promoting workplace harmony and preventing criticism that threatens the employer's ability to carry out its mission. Such discipline is critical, especially in a quasi-military type of organization such as the Fire Service.

The differing interests of employers and employees are highlighted when an employee engages in political speech. Courts have struggled for years with cases involving a government employer's attempt to discipline employees for statements made in the workplace vs. the employee's argument of free speech rights. The U.S. Supreme Court has developed a traditional balancing test to determine whether an employee's free speech rights were improperly curtailed by the employer. The test balances the govern-ment's interests in fulfilling its role as an employer with the threat of the government using its authority over employees to silence discourse.

First, for speech to rise to the level of First Amendment protection, the employee must establish the burden of proof that the speech is a matter of "public concern." Public concern is defined as that which relates to matters of serious "political, social, or other concerns." The "content, form, and context" of a given statement must be carefully examined. Where speech which pertains solely to an employee's personal grievances against the employer, it does not meet the burden and does not fall within the scope of First Amendment protection.

Second, if the speech is of public concern, the employer's interests in promoting the "efficiency of the public service" must be examined to determine if they outweigh the employee's interests in unrestricted speech. Efficiency of the public service generally refers to the operations of the government in the provision of governmental service, and to the maintenance of "integrity" and "proper discipline" within the organization. And, the Supreme Court has made it clear that an employer must, prior to imposing any discipline, conduct a competent investigation to determine what an employee actually said.

So, what does all this mean? Consider an example where an employer has two standard personnel policies: one prohibiting "political activity" and one detailing who has authority to speak to the media as a representative of the organization. On the surface, both of these policies somewhat curtail free speech but are necessary to the organization fulfilling its mission. Are the policies legal? Answer: they usually are but it depends on the facts and we need more to decide.

Going further with the example, suppose an employee of the Fire Department feels bitter about the way he, or she, has been treated relating to a recent discipline. He seeks out a reporter and gives an interview during which he is very critical of how the Fire Chief is running the department and how he has been treated unfairly. Is the interview improper or protected free speech? Let's analyze the facts in light of the above court guidelines.

Is the subject matter of the interview a matter of "public concern" or a personal grievance by the employee? In this case, if clearly looks like a personal grievance, and as such, would probably not be protected by free speech. The employee's general comments about department policy and his personal discipline do not meet the "public concern" test.

Let's change the facts a little. Suppose the employee has known that the department routinely cuts costs by ignoring periodic service on the ambulance fleet. As a result, there have been several near accidents caused by faulty brakes on department ambulances. This had been common knowledge for a long time and employees have been warned to not talk publicly about it. Going further, let's say an employee tells a reporter that he is worried about an accident happening and citizens or employees being injured by an ambulance because of the employer's maintenance policy. If this speech protected?

Under the court's language, this employee's actions appear to be a matter of public concern, indeed a matter of public safety. This is very analogous to the "whistleblower" type of statutes. This speech would most likely be protected as free speech, especially if this was a last resort to try and avert disaster. This is an exaggerated example and, hopefully, will never happen in a fire department.

The above examples are extremes and, as such, are not difficult to analyze. In the real situations which employers and employees find themselves, things are seldom this black and white. Employees should exercise great care when engaging in anything politically related in the workplace or publicly criticizing the employer's policies or managerial decisions. The penalties for ignoring a policy can be great when an employee is wrong. An employee is not allowed the luxury of objecting to an employer's policies unless it is clearly a matter of public concern and the consequences of remaining silent are certain.

As has been shown, politics and free speech issues are thorny. Employers should have well written policies clearly defining what behavior is not permitted. Both supervisors and employees should have a thorough understanding of the policies and should be very conservative in their interpretation. Employers should also be mindful of an employee's free speech rights. As with most things, a little common sense and thought before action goes a long way.

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